Pavlos Eleftheriadis: The EU Protects Liberty, but a British Bill of Rights Would Endanger It

As David Cameron tiptoes towards a referendum which will decide the UK’s future role in Europe, any innovation that could placate eurosceptic sections of the electorate might prove useful. That is maybe why an article by a fellow academic has gained political currency by pushing forward again the argument that Britain should install a “Bill of Rights” which allows judges to veto incompatible European Union laws.

Guglielmo Verdirame, a professor of international law at Kings College London, calls for Britain to emulate what he considers to be the model of Germany and other EU member states. And the prime minister has hinted this month that something like it is still in his thoughts, even though he rowed back from just such a policy after the general election in May.

The proposal is very seriously flawed. It is based on the assumption that the UK is not currently “free and sovereign” because our law requires that we must submit to the claims of EU law “come what may”. This is not and has never been the case.

It is a stable constitutional principle in Britain, decided by the House of Lords in 1991 that EU law is subject to UK law for its continuing effect. In the recent Supreme Court case of HS2 Action Alliance Lord Reed said that in case of a conflict between EU law and a constitutional principle, the conflict has to be resolved “by our courts as an issue arising under the constitutional law of the United Kingdom”.

The Court said that EU law does not enjoy higher status compared to other fundamental constitutional principles. So there is no need to repatriate anything. The power that the proposal wishes to reclaim has never left these islands.

In fact, the current position is exactly the same as in Germany, whose constitution states that Germany “shall participate in the development of the European Union” but only subject to general requirements of the German constitution.

British courts are already empowered, just like the German courts are, to apply the British constitution against EU law, if this ever becomes necessary. Lord Mance explained this clearly last March in a Supreme Court case, where he said: “a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements”.

Arresting case

The argument for a British Bill of Rights gains whatever traction it has from a description of European law as hostile to liberty. Verdirame’s article refers to a recent European Arrest Warrant case where the European Court of Justice said that: “rules of national law, even of a constitutional order cannot… undermine the effectiveness of EU law”. The conclusion that he draws is that European judges put the effectiveness of EU law “above liberty”.

But this account is highly misleading. The case concerned the extradition of a man who was convicted in absentia for fraud in Italy after fleeing to Spain. His trial and two appeals took place without his physical presence in Italy but while he was being represented by two lawyers of his own choice.

The Spanish Constitutional Court thought he should be retried, the Italian authorities did not. Spain asked for advice from the European Court of Justice, which favoured the Italian view. In other words, the EU’s legal architecture was used to settle a cross-border legal discrepancy, which must surely be an essential feature if a European arrest warrant is to work at all.

The ruling itself said that EU law did not require the retrial of a fugitive from justice, when he had been given adequate warning and had been represented by lawyers of his own choice. This is also the position adopted by the European Court of Human Rights; it is your right to be effectively defended by a lawyer but you don’t lose the benefit of that right if you fail to turn up.

Rights and responsibilities

It is hard then to argue, as Verdirame does, that this case exhibits some kind of “illiberal hubris”. The rights of a defendant are always paramount, but the integrity of a system of criminal justice is also paramount. Both are requirements of the rule of law. How to balance them is a difficult issue of practice, but liberty lies on both sides. Having a uniform standard is not to ignore rights. It is the only way to take them seriously.

On this point, the German Constitutional Court, which is held up as an exemplar of sovereignty, agrees wholeheartedly with the European Court. A 2010 judgement said that national courts should exercise their rights to enforce the national constitution, but with caution, and with an acknowledgement of the EU court’s unique authority derived from treaties between member states. It also said that it should enjoy a “right to tolerance of error”; in other words, just because a national court thinks the EU court might be wrong – such as in the case described above – that is not necessarily a justification to veto.

Ironically, it is Verdirame’s proposal that fails to take liberty seriously. It tells the UK government to deal with EU law, not on the basis of general constitutional principles – which is currently the law, but on especially designed grounds that are brought into being for that purpose alone. If Cameron goes ahead with a plan along these lines, then he will join the company of Hungarian prime minister, Viktor Orbán, and Turkish president, Recep Tayyip Erdogan, as a leader who has sought to change his country’s constitution for narrow partisan purposes.

Having a parliamentary majority create a list of supposed constitutional principles in order to achieve some short-term political gain is no way to respect the constitution. It is one of the oldest known ways of undermining it.

Pavlos Eleftheriadis is Associate Professor of Law and Fellow of Mansfield College at the University of Oxford and practises in EU law from Francis Taylor Building in the Temple.

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3 comments on “Pavlos Eleftheriadis: The EU Protects Liberty, but a British Bill of Rights Would Endanger It”

The purpose of a British Bill of Rights (BBOR) would not be to ‘veto’ CJEU judgments – an element of tunnel vision here surely – but to give a stronger feeling of ‘ownership’ to the protection and implementation of human rights in the UK than the rather dry and legalistic method of annexing the Convention to the HRA provides.

However, the project would be fraught with danger and likely to founder (i) on inability to gain agreement over the rights that should be included and what rights are intrinsically ‘British’ (if any) -an attempt was made to answer this question by Justice some years ago. And (ii) the requirements of different situations in the devolved regions would make agreement at a British level difficult. Thus a BBOR would probably come down to a restatement of the Convention, which is scarcely worth doing and would endanger the HRA.

Whether a BBOR could act as a shield for the so called British opt out from the Charter and Charter jurisprudence in the CJEU I rather doubt. But it might provide a more complete and cohesive answer to the question whether the UK has a ‘comparable’ human rights protection.

I wrote a paper titled ‘A “British” Bill of Rights?’, for my Masters thesis, dealing with this exact question.

The fundamental question addressed is whether there is any compelling or convincing argument (s) vis-à-vis to changing our Human Rights Act 1998 and replacing it with a distinctively British Bill of Rights. The overarching theme of this paper is that our human rights should not be based on what our government finds convenient, acceptable or compatible with its electoral aims. Any change to our Human Rights Act should only serve to further bolster human rights protection and not in any way whatsoever water-down, in this author’s view, the fairly minimalist status quo.